Motion to Reconsider Sentence - California

TABLE OF CONTENTS

1. Caption
2. Motion Header
3. Original Sentence Summary
4. Grounds for Recall and Resentencing
5. Mitigating Factors
6. Rehabilitation Evidence
7. Proposed Modified Sentence
8. Legal Authority
9. Proposed Order
10. Certificate of Service
11. State-Specific Notes

Caption

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [________________________________]

Motion Header

MOTION IN PENDING RECALL AND RESENTENCING PROCEEDING UNDER CALIFORNIA PENAL CODE § 1172.1

Proceeding initiated by: ☐ Court's own motion on [__/__/____] ☐ Authorized recommendation by [AGENCY/OFFICIAL] received on [__/__/____]

Statutory commitment: Following a felony conviction, Defendant was committed on [__/__/____] to ☐ the custody of the Secretary of the Department of Corrections and Rehabilitation ☐ the custody of the county correctional administrator under Penal Code § 1170(h). (Pen. Code § 1172.1(a)(1).)

TO THE HONORABLE COURT:

In the pending recall proceeding identified above, Defendant [________________________________], through counsel [________________________________], requests an order recalling the sentence previously imposed and resentencing Defendant pursuant to California Penal Code § 1172.1. This filing responds to that pending proceeding; it is supported by the grounds and authorities below, any attached declaration or exhibits, and such other evidence as may be presented at the hearing.

Original Sentence Summary

1. Defendant's Name: [________________________________]

2. CDCR Number: [________________________________]

3. Date of Original Sentencing: [__/__/____]

4. Sentencing Judge: Hon. [________________________________]

5. Offense(s) of Conviction:

6. Sentence Imposed: [________________________________]

7. Date of Commitment: [__/__/____]

8. Time Served as of Filing: [________________________________]

9. Current Facility: [________________________________]

Grounds for Recall and Resentencing

In this pending proceeding, Defendant supports recall and resentencing on the following grounds:

☐ A. Change in Sentencing Law. Applicable sentencing law has changed since the original sentence was imposed, including but not limited to: [________________________________]

☐ B. Post-Conviction Rehabilitation. Defendant has demonstrated significant rehabilitation since sentencing, including: [________________________________]

☐ C. Diminished Physical Condition. Defendant's physical condition has materially changed since sentencing: [________________________________]

☐ D. Changed Circumstances. Circumstances have changed such that continued incarceration is no longer in the interest of justice: [________________________________]

☐ E. Sentencing Error. The original sentence was based on an error of law or fact, specifically: [________________________________]

☐ F. Disproportionate Sentence. The sentence imposed is disproportionate to the offense and the offender's culpability: [________________________________]

☐ G. Cooperation with Authorities. Defendant has provided substantial cooperation with law enforcement since sentencing: [________________________________]

Mitigating Factors

The following mitigating factors support resentencing:

☐ Defendant's age at the time of the offense: [________________________________]

☐ Defendant's current age: [________________________________]

☐ Prior criminal history (or lack thereof): [________________________________]

☐ Role in the offense (minimal or secondary): [________________________________]

☐ Childhood trauma, abuse, or neglect: [________________________________]

☐ Mental health conditions at the time of the offense: [________________________________]

☐ Substance abuse issues at the time of the offense (now addressed): [________________________________]

☐ Impact of incarceration on Defendant's dependents: [________________________________]

☐ Other mitigating circumstances: [________________________________]

Rehabilitation Evidence

Defendant has achieved the following during incarceration:

A. Programs Completed:

B. Employment and Vocational Training:

[________________________________]

C. Educational Achievements:

[________________________________]

D. Community Ties and Reentry Plan:

[________________________________]

E. Support Letters:

☐ Letters from family members (number attached: [____])

☐ Letters from community members (number attached: [____])

☐ Letters from program instructors or staff (number attached: [____])

☐ Letters from prospective employers (number attached: [____])

F. Disciplinary Record:

[________________________________]

Proposed Modified Sentence

Defendant respectfully requests the Court impose the following modified sentence:

[________________________________]

The requested sentence is no greater than the initial sentence. Defendant requests credit for time served. (Pen. Code § 1172.1(a)(1), (a)(6).)

Legal Authority

A. Cal. Penal Code § 1172.1(a)(1) — The court may act on its own motion within 120 days of commitment, or at any time if applicable sentencing laws have subsequently changed. A recommendation from the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, the county correctional administrator, the district attorney, or the Attorney General when the Department of Justice prosecuted the case may also initiate recall consideration at any time.

Postconviction evidence. In deciding whether to recall and resentence, the court shall consider the postconviction factors identified in § 1172.1(a)(5), including rehabilitation, disciplinary record, age, time served, diminished physical condition, and changed circumstances bearing on whether continued incarceration remains in the interest of justice.

B. Cal. Penal Code § 1172.1(c) — A defendant is not entitled to file a petition under this section, and the court need not respond to a defendant's request for consideration. This filing addresses the pending proceeding identified above.

C. Cal. Penal Code § 1172.1(b) — If the court received an authorized recommendation from one of the officials listed in subdivision (b), it must provide notice, appoint counsel, and set a status conference within 30 days. In that setting, subdivision (b)(2) creates a presumption favoring recall and resentencing unless the court finds the specified unreasonable risk to public safety.

D. Additional Authority:

[________________________________]

Proposed Order

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [________________________________]

Case No.: [________________________________]

ORDER ON RECALL AND RESENTENCING IN PENDING PROCEEDING

Having considered the authorized recommendation or court-initiated recall proceeding, Defendant's supporting motion, the opposition (if any), and the evidence presented, and good cause appearing:

IT IS HEREBY ORDERED that:

1. The sentence previously imposed on [__/__/____] is RECALLED.
2. Defendant is resentenced as follows: [________________________________]
3. The new sentence is no greater than the initial sentence, and Defendant shall receive credit for time served.
4. [________________________________]

Dated: [__/__/____]

_________________________________________
Hon. [________________________________]
Judge of the Superior Court

Certificate of Service

I, [________________________________], hereby certify that on [__/__/____], I served a true and correct copy of the foregoing Motion for Recall of Sentence and Resentencing on the following parties by the method indicated:

☐ Personal delivery
☐ United States Mail, first class, postage prepaid
☐ Electronic service via [________________________________]

Office of the District Attorney
[________________________________]
[________________________________]
[________________________________]

California Department of Corrections and Rehabilitation (if applicable)
[________________________________]
[________________________________]

Dated: [__/__/____]

_________________________________________
[________________________________]
Attorney for Defendant

State-Specific Notes

Distinction from Appeal: The court must advise the defendant of appeal rights and the steps and time for appeal after ruling on an authorized referral under § 1172.1(d).

Initiation: Section 1172.1(c) does not entitle a defendant to file a recall petition. Complete the proceeding-initiation field above before filing this motion in an existing court-initiated or authorized-referral proceeding.

Changed Sentencing Law: Under § 1172.1(a)(1), a court may initiate recall at any time if applicable sentencing laws have changed through new statutory authority or case law since the original sentence.

Timing: A court acting on its own motion ordinarily must do so within 120 days of commitment; a later change in applicable sentencing law permits court-initiated recall at any time. Section 1172.1(b)(1)'s 30-day status-conference rule applies to authorized official recommendations.

Presumption of Recall: The presumption in § 1172.1(b)(2) applies when one of the officials listed in subdivision (b) recommends resentencing. It does not apply merely because a defendant asks the court to act.